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ELCDismissedNotice of Motion dated 8th September 2025 (arising from land dispute over Land Parcel No. Samia/Buburi/256)· [2026] KEELC 4454 (KLR)

Bachakha & another v Egokhe & another (Environment and Land Case 14 of 2016) [2026] KEELC 4454 (KLR)

High Court of Kenya
16 July 2026
1,386 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed land owners' bid to pause enforcement of a judgment because they waited over two years and showed no harm.

What this practically means

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Executive summary

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This ruling disposes of a Notice of Motion dated 8th September 2025 brought by the Defendants, Patrick Sikuku and Pauline Ajiambo Egokhe, the legal representatives of the Estate of Sejwa Pascal Egokhe, seeking a stay of sale/execution pending the hearing of Kisumu Court of Appeal Case No. 200 of 2023. The underlying dispute concerned ownership of land parcel Samia/Buburi/256, in which Omollo J had on 25th May 2023 entered judgment for the Plaintiffs, ordered the Defendants to execute transfer documents, and issued a permanent injunction. The Defendants filed a Notice of Appeal on 9th June 2023 but only moved for a stay after the Plaintiffs taxed their costs at Kshs. 127,690 and commenced execution through Remma Auctioneers. The application was mounted under Order 42 Rule 6 of the Civil Procedure Rules. Boaz N. Olao J applied the three conditions in Order 42 Rule 6(2), as restated in Vishram Ravji Halai v Thornton & Turpin: substantial loss, no unreasonable delay, and security. He found the supporting affidavit silent on substantial loss - the cornerstone of such applications - held that the merits of an appeal from a court of concurrent jurisdiction cannot be gauged, and condemned the delay of two years and five months as unexplained and indicative of bad faith. Noting the Defendants made no offer of security and were only jolted into action by taxation and the proclamation of attachment, the court dismissed the Motion as entirely without merit and awarded costs to the Plaintiffs.

Key legal issues

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01

Whether the conditions under Order 42 Rule 6(2) for a stay of execution pending appeal were met

Holding

The Motion failed all three conditions: no substantial loss was demonstrated, the application was filed two years and five months after judgment without satisfactory explanation, and no offer of security was made

Reasoning

The Court restated the three fetters on its jurisdiction from Vishram Ravji Halai v Thornton & Turpin: sufficient cause, substantial loss, and offer of security, coupled with the overriding objective. The supporting affidavit was silent on the substantial loss the Defendants would suffer. The delay from 25th May 2023 to 8th September/October 2025 was unexplained and the Motion was only lodged after taxation and commencement of execution, indicating it was not made in good faith.

p. 3
02

Whether the merits of the pending appeal could support a stay

Holding

No - the court cannot assess the chances of success of an appeal from a judge of concurrent jurisdiction

Reasoning

The Defendants claimed their appeal in Kisumu Court of Appeal Case No. 200 of 2023 had high chances of success. The court held that such an assessment is only relevant for intended appeals from subordinate courts; an appeal from a court of concurrent jurisdiction cannot be gauged by the High Court, so the claim of high chances of success could not sustain the Motion.

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Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution pending appeal, and the applicant must establish it alongside no unreasonable delay and an offer of security
  • A court cannot gauge the likely success of an appeal from a court of concurrent jurisdiction

Court orders

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  1. 1.The Notice of Motion dated 8th September 2025 is dismissed
  2. 2.Costs to the Plaintiffs
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Section 3(2) of the High Court Practice and Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bachakha & another v Egokhe & another (Environment and Land Case 14 of 2016) [2026] KEELC 4454 (KLR)", Case Analysis (2026). Notice of Motion dated 8th September 2025 (arising from land dispute over Land Parcel No. Samia/Buburi/256). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4454/eng@2026-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.